Army Mechanic Is Acquitted on Desertion Charge

By SHAILA DEWAN

Published: July 29, 2005

An Army mechanic who did not return to Iraq with his unit, saying he was opposed to war after seeing it firsthand, was acquitted yesterday of desertion, but convicted of a lesser charge of purposely missing his unit's deployment.

The mechanic, Sgt. Kevin Benderman, had applied for conscientious-objector status 11 days before his unit, the Third Infantry Division based at Fort Stewart, Ga., went to Iraq on Jan. 8.

Sergeant Benderman was sentenced to 15 months of confinement, demotion to the lowest Army rank, private, and a dishonorable discharge after a military judge found him guilty of ''missing movement by design,'' a unit spokeswoman said.

In the court-martial, Sergeant Benderman's lawyer, William Cassara, said that his client believed that he had been excused from deploying. But a prosecutor, Capt. Jonathan DeJesus, said the defendant was simply trying to avoid danger. ''They were hours away from moving,'' Captain DeJesus said, according to The Associated Press. ''They certainly couldn't replace him, and they were in no position to go find him.''

Sergeant Benderman, 40, did not testify, but spoke during the sentencing phase of the trial. ''I went to war, I never ran from it,'' he said, according to The A.P. ''I experienced it, and I realized it's not what I should be doing. In my opinion, it's not what anybody should be doing in the modern world.''

When threatened with a court-martial in January, Sergeant Benderman continued to show up for work at the base. He also spoke publicly about his change of opinion on war, saying that during his first tour in Iraq in 2003 he had seen officers refusing treatment to a burned girl and dogs eating corpses at mass graves.

Sergeant Benderman has served nine years and is the son of a World War II veteran, Mr. Cassara said.

After charges were brought, Sergeant Benderman's application for conscientious-objector status was denied. Conscientious objectors must show that after joining the military, they developed sincere and deeply held beliefs that prevented them from participating in war.

Applicants can be deployed while awaiting a decision, but they are supposed to be given jobs that are in keeping with their pacifist beliefs, several military lawyers said.

''The regulation says they're not supposed to order you to carry a weapon,'' said James Klimaski, a defense lawyer specializing in military law. ''Can you imagine going over to a war zone and saying you're not going to carry a weapon? They're giving these people orders knowing they're not going to accept them.''

Army officials have pointed out that Sergeant Benderman waited for more than a year after the end of his first tour in Iraq to apply for conscientious-objector status. He has said that it took him months to recover from his deployment.